Millions of Americans went to the polls Tuesday to select our leaders, again fulfilling the promise of democracy our Founding Fathers envisioned 225 years ago. In places like New Jersey, Pennsylvania, Florida and Ohio, various problems arose for people trying to exercise their “constitutional” right to vote. Yet remarkably, the U.S. Constitution, our most important document, does not actually grant citizens the “right to vote.” This needs to change, either through a constitutional amendment or a better adherence to state constitutional provisions on voting rights.

The U.S. Constitution is not silent about voting rights: It mentions the right to vote seven times. But the provisions either point to state rules on voting qualifications or declare when states may not take the right away. For example, states may not abridge the right to vote on the account of race, sex, ability to pay a poll tax or age. But none of the amendments setting out these restrictions actually grant to citizens the right to vote.

In fact, under federal law, the right to vote is best understood as emanating from the Constitution’s Equal Protection Clause, which simply requires states to treat all voters the same. Under this principle, the Supreme Court has upheld “reasonable” restrictions on the right to vote, so long as the state applies those restrictions “evenly” to all voters. This was the basis of the court’s 2008 decision upholding Indiana’s strict voter identification requirement. The law applied equally to all voters, and there was not enough evidence that the law actually took away the right to vote from an identifiable group of citizens.

Virtually all state constitutions, by contrast, explicitly grant the right to vote to the states’ citizens. In fact, 49 of the 50 states declare in their constitutions that all citizens (with limited exceptions such as for felons) enjoy the right to vote. (Arizona is the only state that does not grant the right to vote in its Constitution.) For example, Wisconsin’s Constitution provides that “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” Two Wisconsin courts struck down that state’s new voter identification law earlier this year because the law went beyond this constitutional grant of voting rights.

Why, then, have other states, such as Pennsylvania, upheld new voter ID laws under their state constitutions? Pennsylvania’s Constitution is very similar to Wisconsin’s, declaring that “Every citizen … possessing the following qualifications [such as age, citizenship and residency] shall be entitled to vote.” Although Pennsylvania could not use its new voter identification law for the 2012 elections, the courts will most likely uphold it for future elections. What is different between Pennsylvania and Wisconsin?

The answer is that the Wisconsin courts recognized the affirmative grant of the right to vote under that state’s Constitution, while the Pennsylvania court failed to give its state constitutional provision any independent meaning. The Wisconsin courts explicitly acknowledged that the Wisconsin Constitution grants greater voting protections than the U.S. Constitution; the Pennsylvania court, using an analysis known as “lock stepping,” followed the U.S. Supreme Court’s lead in how to construe the right to vote, ignoring the textual differences between the U.S. Constitution and the Pennsylvania Constitution.

But lock stepping — construing the scope of state constitutional rights as the same as the analogous right under the federal Constitution — makes little sense for something as important as voting rights. First, the U.S. and state constitutions are textually different: The U.S. Constitution does not grant the right to vote, while most state constitutions list the right to vote as an affirmative right for their citizens. Second, the U.S. Constitution explicitly points to state voting qualifications for who may vote for Congress — suggesting that state rules, and not the federal equal protection principle — should define voting rights. Third, the right to vote is the most precious right in our democracy, and it therefore should enjoy the most robust protection possible.

There are two solutions: Either we need a federal constitutional amendment granting the right to vote, or state courts must avoid the “lock stepping” approach when analyzing restrictions on voting rights, instead recognizing that state constitutional provisions are broader than the federal equality principle.

When Americans enter the voting booth, they exercise the most fundamental and cherished right we possess, demonstrating to the world the promise of democracy and free will. It is time for our legal system to follow suit. Either the U.S. Constitution should explicitly recognize the right to vote as an affirmative, fundamental right that all citizens enjoy, or state courts should respect and enforce the robust grant of the right to vote that state constitutions already confer.

Joshua Douglas is an assistant professor at the University of Kentucky College of Law, specializing in election law.